FILED

April 15, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

LEON PARDUE, JR., )

)

Plaintiff/Appellant, )

) Appeal No.

) 01-A-01-9707-CH-00312

VS. )

) Davidson Chancery

) No. 96-1232-II

THE METROPOLITAN GOVERNMENT )

OF NASHVILLE & DAVIDSON )

COUNTY and the METROPOLITAN )

EMPLOYEE BENEFIT BOARD, )

)

Defendant/Appellee. )

APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE CAROL L. McCOY, CHANCELLOR

ANN BUNTIN STEINER

STEINER & STEINER

214 Second Avenue North

Suite 203

Nashville, Tennessee 37201-1644

Attorney for Plaintiff/Appellant

JAMES L. MURPHY, III

Director of Law

Department of Law of the Metropolitan

 Government of Nashville and Davidson County

CHRISTI E. PEARSON

204 Metropolitan Courthouse

Nashville, Tennessee 37201

Attorney for Defendant/Appellee

AFFIRMED AND REMANDED

BEN H. CANTRELL, JUDGE

CONCUR:

TODD, P.J., M.S.

KOCH, J.

O P I N I O N
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In this appeal of the Metropolitan Benefit Board’s denial of a disability

pension, the petitioner asserts that the decision is unsupported by substantial and

material evidence, that the Board should have given more weight to the treating

physician’s testimony, and that the reviewing court should have conducted a de novo

review of the Board’s decision. The Chancery Court of Davidson County conducted

a limited review and dismissed the petition. We affirm.

I.

Leon Pardue, Jr., an employee of the Metropolitan Public Works

Department, applied for a medical pension in November of 1994. His claim,

supported by the opinion of his treating physician, was that a degenerative joint

disease and chronic pain syndrome rendered him unable to perform his duties as a

loader and driver of a chipper truck. The Metropolitan Benefit Board referred Mr.

Pardue to independent medical and psychological specialists, and the specialists

reported that they could find no objective basis for work restrictions. On August 14,

1995, the Board denied the disability application.

From August of 1995 until February of 1996 the question bounced from

one committee to another, to the Board and back to the committees. The record was

periodically supplemented with other medical evidence, and at one point the pension

committee recommended that the Board reconsider its prior action and grant Mr.

Pardue a pension retroactive to September of 1994. The motion failed in a tie vote

before the Board. On February 26, 1996, the Board voted for a final time and refused,

by a vote of four to three, to reconsider its prior denial.

II.
- 3 -

On appeal Mr. Pardue argues that the Board’s action should be

reviewed under the Tennessee Administrative Procedures Act, Tenn. Code Ann. § 4-

5-101, et seq. The Board, however, is an agency of the Metropolitan Government of

Nashville and Davidson County, and the Administrative Procedures Act does not

cover “county and municipal boards, commissions, committees, departments or

offices.” See Tenn. Code Ann. § 4-5-106(a). The proper method of reviewing a

decision denying a pension to a civil servant is by the common law writ of certiorari.

Kendrick v. City of Chattanooga, 799 S.W.2d 668 (Tenn. App. 1990); Tenn. Code

Ann. § 27-9-114.

Under the common law writ our review of the evidence is severely

limited. We only examine the record to see if there is any material evidence to

support the Board’s action. Watts v. Civil Service Bd., 606 S.W.2d 274 (Tenn. 1980);

Lansden v. Tucker, 321 S.W.2d 795 at 797 (Tenn. 1959). In this case there is

evidence in the record from which the Board could conclude that Mr. Pardue was not

disabled. More than one examining physician rendered an opinion that Mr. Pardue

could return to work.

III.

In a related argument, Mr. Pardue contends that in weighing the

evidence before it, the Board should have given greater weight to the testimony of his

treating physician. The cases cited for that proposition, however, do not support the

argument. In Crossno v. Publix Shirt Factory, 814 S.W.2d 730 (Tenn. 1991), a

worker’s compensation case decided by a trial judge, the Supreme Court said:

When the medical testimony differs, the trial judge must

obviously choose which view to believe. In doing so, he

is allowed, among other things, to consider the

qualifications of the experts, the circumstances of their

examination, the information available to them, and the

evaluation of the importance of that information by other

experts. 
- 4 -

814 S.W.2d at 731. While the trial judge did give more weight to the treating

physician’s testimony in that case, the rule announced by the Supreme Court

concerns the credibility of the witnesses rather than whether the witness was a

treating or a consulting physician.

The Board’s authority is derived from section 3.28.060 of the

Metropolitan Code. That section provides:

The board shall have the exclusive authority to determine

the disability and continuation of disability of a disabled

member . . . An applicant for a disability pension shall

furnish to the board a “disability report,” as provided in this

section, and such other medical or other information as

may reasonably be required by the board for the purpose

of establishing disability. The board may secure

additional medical or other evidence as it deems

necessary and appropriate. On the basis of the disability

report, medical and other information as the board has

assembled, the board shall thereupon determine whether

or not the applicant is a disabled member. . . .”

This provision does not require the Board to give more weight to any

particular part of the evidence before it. We think that the Board has the power to

make its own decision with respect to the credibility of the witnesses.

IV.

Finally, Mr. Pardue argues that the courts should review the record de

novo under section 12.07(h) of the Metropolitan Charter. That section, applicable only

to a review of a decision by the Civil Service Commission, provides for a de novo

review of a decision dismissing an employee from the service.

In Bush v. Employee Benefit Board, 792 S.W.2d 932 (Tenn. App. 1990),

we held that the Benefit Board of the Metropolitan Government and the Civil Service

Commission are distinct and separate boards exercising discrete functions prescribed
- 5 -

by the Metropolitan Charter. The charter provisions affecting one board or

commission do not apply to the other. Therefore, the de novo review provisions

affecting the Civil Service Commission do not apply to the Benefit Board.

The judgment of the trial court is affirmed. The cause is remanded to

the Chancery Court of Davidson County for any further proceedings necessary. Tax

the costs on appeal to the appellee.

____________________________

BEN H. CANTRELL, JUDGE

CONCUR:

_______________________________

HENRY F. TODD, PRESIDING JUDGE

MIDDLE SECTION

_____________________________

WILLIAM C. KOCH, JR., JUDGE